IANA Transition's Completion Allows ICANN Stakeholders' Refocus

The office of Texas AG Ken Paxton, who spearheaded the lawsuit, is “still considering our legal options,” a spokeswoman said. Spokespersons for Arizona Attorney General Mark Brnovich, Nevada Attorney General Adam Laxalt and Oklahoma Attorney General Scott Pruitt, who joined Paxton in the suit, also said they were evaluating how to proceed. It’s still possible the AGs could seek to appeal Hanks’ ruling or continue to pursue their underlying suit, though it’s unlikely such a move would prevail, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. The AGs “have to evaluate whether continuing to pursue this is a good use of taxpayers’ money,” Corwin said.

It’s also unlikely Capitol Hill Republican lawmakers who pushed for a transition delay will attempt to retaliate against NTIA for proceeding, Corwin said. “Punishing NTIA at this point would be childish,” he said. “Congress has had ample opportunity to freeze the transition over the last two years.” If Senate Majority Leader Mitch McConnell, R-Ky., had insisted on keeping a sought-after provision in the now-enacted short-term continuing resolution to fund the government through Dec. 9 that would have delayed the transition, “he could have gotten Senate Democrats to agree to a deal, but he didn’t,” Corwin said. Congress passed the CR without the delay language (see 1609220067 and 1609280067).

The handoff’s execution will allow ICANN stakeholders to “refocus virtually all of their efforts” on successfully concluding its work on a second set of changes to ICANN’s accountability mechanisms, said Wiley Rein telecom and internet governance lawyer David Gross. The Cross Community Working Group on Enhancing ICANN Accountability, which has been planning the governance changes, will now “actually focus” on work on this second set of accountability changes “as opposed to wondering what we’re going to do” if Congress or Hanks’ court had delayed the move, said working group member Milton Mueller, a Georgia Tech communication and information public policy professor. Much of CCWG-Accountability’s work on its second set of accountability changes remains in its preliminary stages, but is targeted for completion by early summer 2017, said Corwin, another member of the working group.

CCWG-Accountability’s targeted accountability changes include an examination of whether to permanently base ICANN's headquarters in Los Angeles, which led some to worry ICANN could be moved outside U.S. jurisdiction. The prevailing consensus within the CCWG-Accountability subgroup examining the jurisdiction issue now rests squarely in favor of maintaining ICANN’s home base in Los Angeles, with any thought of moving the nonprofit outside U.S. jurisdiction now “about 95 percent off the table,” Corwin said. The subgroup is now largely examining whether there are any gaps between California law and the accountability changes that ICANN has implemented, he said. It’s unlikely there will be any major gaps between state law and ICANN’s accountability changes, particularly since those fixes were written to work best under California law, Corwin said.

Other issues CCWG-Accountability is examining, such as how to implement an ICANN bylaw requiring the organization to respect international human rights to the extent required by applicable law, aren’t causing problems yet, Corwin said. Mueller said he remains concerned some CCWG-Accountability members may attempt to scuttle the human rights bylaw’s implementation entirely. “Some people seem to be playing that game,” he said. CCWG-Accountability is also examining how to improve ICANN staff accountability and increase transparency for the organization’s internal documents, Corwin said.

The switchover’s completion is an early victory for ICANN CEO Göran Marby, but it also means that stakeholders will now be watching for how Marby will pivot the organization to other issues, said Rightside Vice President-Business and Legal Affairs Statton Hammock. The handoff has likely removed the possibility of related tensions at ICANN’s upcoming Nov. 3-9 meeting in Hyderabad, India, “that could have surfaced if the transition was still in question at that point,” Corwin said. Many internal issues that have been “pushed to the side” will garner more attention from stakeholders, including the ongoing review of the gTLD program and how to use ICANN’s gTLD auction proceeds, he said.

Hammock said he hopes the switchover’s completion will allow the domain name industry to turn its sights back to other pressing issues “that have been compromised on because of the bandwidth that’s been required over the last two years on the transition.” Handoff-related issues dominated most ICANN meetings since 2014 and “it’s obviously taken up a lot of time for people on working groups associated with the transition,” he said. “There’s only so many hours in the day that we could devote to other things.” There is a wide swath of issues that require attention in the months ahead, including those related to the domain marketplace and consumer awareness of new gTLD names, Hammock said.

The IANA move will be a major net positive for U.S. diplomats’ work to promote multistakeholder internet governance at the ITU and Internet Governance Forum, Gross and others told us. China, Russia and other nations that have sought more government involvement in internet policymaking will now likely shift their focus away from ICANN and back to the ITU, particularly given the upcoming World Telecommunication Standardization Assembly, Gross told us. WTSA is Oct. 25-Nov. 3 in Yasmine Hammamet, Tunisia. WTSA, the 2017 World Telecommunication Development Conference and the ITU’s 2018 Plenipotentiary Conference have the potential to be flash points on internet governance issues, Gross said.

The U.S. will head into WTSA with a vastly strengthened argument in favor of multistakeholderism because of the transition, Gross said. U.S. officials can point to the handoff as an example of why internet policymaking should be left to multistakeholder bodies like ICANN “rather than government-centric institutions” like the ITU, Gross said. The U.S. can now be a “more forceful advocate” on multistakeholderism, said George Mason University Mercatus Center Technology Policy Program Director Eli Dourado. U.S. officials have in the past been seen to have not strongly pushed its vision because of concerns they would be seen as hypocritical given NTIA’s IANA oversight, Dourado said.

The switchover means the U.S. “has a little more trust” from countries that have traditionally straddled the line between full support for either multistakeholderism and multilateral, government-centric internet governance, Dourado told us. “Middle” countries like Brazil and India “may now be more inclined to see the U.S. as an honest player” on internet governance, he said. Gross said India reaffirmed its commitment to multistakeholderism last week ahead of the transition. Since India “is one of the world’s largest internet communities and is a leader in the developing world, [that reaffirmation] has to be good news” for the U.S.’s position, Gross said.